We have already had occasion to mention the state of foreign
commerce, upon the conclusion of the peace with
Great-Britain; and the conduct of the government of that
nation in excluding our vessels from their ports in the
West-India Islands. The proposition made by the state of
Virginia to authorise congress to prohibit the importation
of the growth or produce of those islands into the United
States in British vessels, and even to adopt more energetic
measures, by refusing the necessary supplies to those islands,
if adopted, would probably have counteracted the
designs of that politic nation: but, that fatal want of unanimity
among the states, which at that period marked all
their councils, defeated the proposal. The boldness of the
measure on the part of Great-Britain, evinced a determination
to secure her commercial advantages, even at the
risk of the existence of her colonies; yet it is not to be
imagined that she would have persevered in such a conduct
towards her own colonies, if the United States had
offered to retaliate her policy, by refusing them provisions,
lumber, and other articles of the first necessity, unless
they were admitted to send them thither in their own
vessels, as well as in those of British subjects. For, independent
of the injustice and inhumanity of such a conduct in
the predominant state, the prosperity of the sugar colonies
must have been of more consequence to Great-Britain,
than the whole of the carrying trade between those islands
and the United States. True it is, that it was pretended by
the British ministry, and their adherents, that Nova Scotia
and Canada could supply those islands, with every necessary
formerly derived from the United States. But the bare
admission of those articles from the United States, in any
manner whatsoever, might be relied on as an unequivocal
evidence that they had no confidence in the sufficiency of
the resources which might be drawn from Canada or Nova
Scotia; and experience is said to be strongly in favour of
the opinion that those colonies cannot supply the sugar
islands, either with provisions or lumber, in any degree
proportionate to their necessities. The conduct of Great-Britain
in declining any commercial treaty with America,
at that time, was unquestionably dictated at first by a
knowledge of the inability of congress to extort terms of
reciprocity from her; and of that want of unanimity
among the states, which, under the existing confederation,
was a perpetual bar to any restriction upon her commerce
with the whole of the states; and any partial restriction
would be sure to fail of effect.

Having repeatedly noticed the defect of the former confederation,
in respect to the regulation of the commerce
between the several states, and the inconveniences resulting
from it, I shall only mention one not yet touched
upon: I mean the burthens which might be imposed by
some of the states, on others, whose exports, and imports
must necessarily pass through them. Thus a duty on salt
imported into Virginia, or on tobacco exported from
thence, might operate very extensively as a tax upon the
citizens of the western parts of North Carolina and Tennessee,
to the exclusive emolument of the state of Virginia.
So unreasonable an advantage ought not to prevail among
members of the same confederacy, and without a power to
control it lodged somewhere, it would be impossible that it
should not be exerted: the repetition of such exertions
could scarcely fail to lay the foundation of irreconcileable
jealousies, and animosities among the states. And it was
evidently with a view to prevent these inconveniences, that
the constitution provides that no state shall, without the
consent of congress, lay any imposts, or duties on exports
or imports, except what may be absolutely necessary for
executing it's inspection laws.

A direct consequence of this power of regulating commerce
with foreign nations, and among the several states,
is that of establishing ports; or such places of entry, lading,
and unlading, as may be most convenient for the merchant
on the one hand, and for the easy and effectual collection
of the revenue from customs, on the other. In England,
this is one of the branches of the royal prerogative, but is
vested in the supreme federal legislature, and not in the
executive, by the constitution of the United States.

Previous to the revolution the ports of Virginia were coextensive
with her tide waters. The ships anchored wherever
their navigators thought proper, and discharged or
took on board their cargoes, as suited their own convenience,
or contributed to the saving of expence. Nothing
could be more favourable to the practice of smuggling;
and consequently the revenue was frequently defrauded
with impunity. Nothing could be more unfavourable to the
internal navigation by small vessels, although few countries
possess greater advantages for it's encouragement and
promotion. The employment of a considerable number of
these, would not only afford a nursery for seamen, but
prove an actual mercantile saving to the state, so long as
commerce should be carried on in foreign bottoms, as was
at that time pretty generally the case. The legislature became
sensible of these things, and in the year 1784, (May
session, c. 82.) passed an act, whereby ships and other vessels
trading to this commonwealth, from foreign parts,
being the property of other than citizens of the commonwealth,
were obliged to lade, and unlade at certain particular
ports, and no where else, within the commonwealth.
The number of ports was increased, by the act of 1786. c.
42. and the restrictions as to unlading was extended to all
vessels whatsoever, coming into the state; but any vessel
built within the United States, and wholly owned by any
citizens thereof, was permitted to take in her lading at any
port or place within the state. These acts underwent some
further amendments by the acts of 1787. c. 3, among
which were some wholesome regulations respecting river
craft: but these appear to have been considered as repealed,
by the act of 1 cong. 1 sess. c. 11. sec. 22 and 23,
on the subject of the coasting trade. But the constitutionality
of that act may perhaps be questioned, so far as it
relates to vessels trading wholly within the limits of any
particular state. The policy of the before-mentioned acts
of this state, appears to have been well founded: the effects
begun to manifest themselves in the production of a
greater number of river craft, than had ever been known
at any former period. . . . But the acts of congress, for
the establishment of ports, having extended the number
for foreign ships to fourteen, and even permitted them to
proceed as far as the tide-water flows in James' River, Rappahannock,
and Potowmac, these salutary regulations in
the state laws, have undoubtedly been, in a great measure,
frustrated. It seems rather extraordinary, that on a subject
of this nature, no regard should have been paid to the
former policy of the state legislature, especially, as that
policy was evidently favourable to the collection of the revenue
arising from the customs.

A distinction between the admission of foreign ships,
and those of our own confederacy, into the ports of the
state, obviously appears to be proper to be made on other
grounds. The navigation of our rivers was found, in the
time of the revolutionary war, to be infinitely too familiar
to our enemies, in consequence of the privilege before-mentioned,
which had so long been enjoyed by the trading
ships of Great Britain. A renewal of the same policy will
probably produce the same consequences, whenever the
occasion will permit. But if these reasons be not sufficiently
cogent for restraining foreign ships to a few ports,
and those as near to the sea as might be consistent with
safety; the promotion of an internal domestic navigation,
as a nursery for domestic seamen, appears of itself to be
an object of sufficient importance to have engaged the attention
of congress to this subject.

Another consequence of the right of regulating foreign
commerce, seems to be the power of compelling vessels
infected with any contagious disease, or arriving from
places usually infected with them, to perform their quarantine.
The laws of the respective states, upon this subject,
were, by some persons, supposed to have been virtually
repealed by the constitution of the United States. But congress
have manifested a different interpretation of the operation
of that instrument, and had passed several acts for
giving aid and effect to the execution of the laws of the
several states respecting quarantine. The last act upon the
subject, 5. cong. c. 118, enjoins it as a duty upon the collectors,
and other officers of the revenue, the masters and
crews of the revenue-cutters, and the commanding officers
of forts or stations upon the sea-coasts, duly to observe,
and aid in the execution of those laws. Upon the like principle,
I presume that the act of this commonwealth concerning
wrecks, (Edi. 1794. c. 6.) remains in force, until
congress shall think proper to pass some law upon that
subject. A contrary construction of the operation of the
federal constitution in these and other similar cases, upon
which congress may be authorised to legislate, but omit
doing it, might be productive of infinite inconvenience and
disorder.

The right of regulating foreign commerce, draws after
it also, the right of regulating the conduct of seamen, employed
in the merchant service; and by a continued chain,
that of punishing other persons harbouring or secreting
them, as well on land, as elsewhere; and the act of 1. cong.
2. sess. c. 29, accordingly makes it penal in any person to
harbour or secret any seaman regularly engaged in the
service of any ship.

There seems to be one class of laws which respect foreign
commerce, over which the states still retain an absolute
authority; those, I mean, which relate to the inspection
of their own produce, for the execution of which, they
may even lay an impost, or duty, as far as may be absolutely
necessary for that purpose: of this necessity it seems
presumable, they are to be regarded as the sole judges. [C.
U. S. Art. 1. Sec. 10.] The article, indeed, is not altogether
free from obscurity; but as no controversy hath hitherto
arisen upon the subject, it is not my intention to begin one.

But, this power of regulating commerce is qualified by
some very salutary restrictions; for the constitution expressly
declares, Art. 1. Sec. 9. "That no tax or duty shall
be laid on articles exported from any state . . . that no
preference shall be given by any regulation of commerce,
or revenue, to the ports of one state, over those of another;
and that vessels bound to, or from, one state, shall
not be obliged to enter, clear, or pay duties in another."
These restrictions are well calculated to suppress those
jealousies, which must inevitably have arisen among the
states, had any tax or duty been laid upon any particular
article of exportation; and, at the same time, to curb any
disposition towards partiality in congress, should it at any
time be likely to manifest itself.

An amendment to the constitution proposed by the convention
of this state, and concurred in by that of North
Carolina, was, "That no commercial treaty should be ratified
without the concurrence of two-thirds of the whole
number of the members of the senate. . . . And, that no
navigation law, or law regulating commerce should be
passed without the consent of two-thirds of the members
present in both houses." It is somewhat remarkable, that
the treaty of navigation and commerce concluded with
Great Britain in the year 1794, notwithstanding the very
general repugnance to it in almost every part of the
United States, was, nevertheless, ratified precisely in the
manner proposed by the first of these amendments. It appears
that a proposition somewhat like the second, viz.
"that no treaty should be binding upon the United States,
which was not ratified by law," had been made in the general
convention at Philadelphia, and rejected. Nevertheless,
the experience which we have had upon the subject
of treaties, seems to recommend the adoption of some further
precautions against the indiscreet use of this extensive
power. On this subject we shall say something more here-after.

The regulation of commerce with the Indian tribes, as
distinguished from foreign nations, seems, in some degree,
to be founded upon this principle, that those tribes
which are not settled within the limits of any particular
state, could only be regarded as tributary to the United
States in their federal capacity; as to those who reside
within the limits of particular states, it was thought necessary
to unfetter them from two limitations in the articles
of confederation which rendered the provision obscure,
and perhaps contradictory. The power is there restrained
to Indians not members of any of the states, and is not to
violate or infringe the legislative right of any state within
its own limits. What description of Indians were to be
deemed members of a state, had been a question of frequent
contention and perplexity in the federal councils.
And how the trade with Indians, though not members of
a state, yet residing within its legislative jurisdiction, could
be regulated by an external authority, without so far intruding
on the internal rights of legislation, seems altogether
incomprehensible.

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.